Why We Can Thank Judges for So Many of Our Rights

Mr. Lewis, the former NYT columnist, is the author of Freedom for the Thought That We Hate: A Biography of the First Amendment (Basic Books, 2008), from which this article is excerpted.

Until World War II it was a uniquely American practice to give courts, especially the
Supreme Court, a significant role in the structure of governance.
No other democratic society had a constitution enforced
by judges. In Britain and its empire, the doctrine of
parliamentary supremacy prevailed; whatever a parliament
did—however discriminatory, however unjust—was law. But
the tyrannies of the twentieth century brought a change.

Aharon Barak, then the president of the Israeli Supreme
Court, explained the change in a 1998 lecture. In the past, he
said, people thought that respect for basic values “could be
guaranteed by relying on the self-restraint of the majority.” But
after the Nazis, the lesson was that there must be “formal limits
on the power of the majority. The concept that ‘It is not done’
needs to receive the formal expression, ‘It is forbidden.’ ”

And so, country after country adopted constitutional democracy,
giving the last word to judges on basic issues. That was
the pattern in a state with as profound a republican system as France, and then in a reconstructed Germany. It was followed
in the great former British territories, notably India and
South Africa. And the countries of Europe adopted a European
Convention on Human Rights, enforced by a Court of
Human Rights. In time, even Britain agreed that its own
courts should be bound by the European Convention.

As the history of the First Amendment shows, putting a
guarantee into a charter is no assurance that it will be enforced.
After all, it took more than a century for the courts to
begin protecting dissenting speakers and publishers from official
repression in the United States. Or to put it another way,
it took time for judges to build on the fundamental promise of
those fourteen words in the First Amendment: that this would
be a country of free speech and freedom of the press. Time
and imagination and courage. Timid, unimaginative judges
could not have made America as extraordinarily free as it is.

Freedom to speak and write as you wish is the inescapable
necessity of democracy. The judges of the European Court of
Human Rights understood that when, in 1986, they considered
the right to criticize political leaders. They did not consider
the issue in a vacuum; they built on American experience
and decisions.

An Austrian journalist, Peter Michael Lingens, had written
articles charging a politician with the “basest opportunism.”
The politician sued for libel, and the Austrian
courts awarded him damages. Lingens went to the European
Court of Human Rights, which found that the libel judgment
against him violated the Convention on Human Rights—its
clause guaranteeing freedom of expression. That freedom, the court said, “constitutes one of the essential foundations
of a democratic society. . . . It is applicable not only to ‘information’
or ‘ideas’ that are favorably received or regarded as
inoffensive . . . but also to those that offend, shock or disturb.
Such are the demands of that pluralism, tolerance and broadmindedness
without which there is no ‘democratic society.’”
In other words, as Justice Oliver Wendell Holmes Jr. of the
United States Supreme Court said, “freedom for the thought
that we hate.”

When a constitutional provision has no discernible history,
as is true of the First Amendment—no meaningful discussion
by its authors of what they meant—how do judges begin to
build on its words to decide concrete cases? That is a subject
of endless debate. But one thing is sure. Judges, however
bold, are part of their society and are influenced by its attitudes.
To give a stark example: The Nazi experience made
more Americans, and judges, understand the devastating
character of religious and racial discrimination.

Justice Ruth Bader Ginsburg of the Supreme Court, speaking
at the University of Cape Town, South Africa, in 2006,
said: “What caused the Court’s understanding to dawn and
grow? Judges do read newspapers and are affected, not by the
weather of the day, as distinguished constitutional law professor
Paul Freund once said, but by the climate of the era.”

Justice Ginsburg was talking about gender discrimination.
But her point applies to the drama of the First Amendment’s
expanding interpretation since early in the twentieth century.
Great judges like Holmes saw, before most judges and most
Americans, that freedom of thought was an essential element in the success of our diverse society. But judicial commitment
to openness of expression grew as citizens’ did; each informed
the other. And it is worth remembering that the 1798 statute
criminalizing criticism of the president, which was enforced
by judges, was rejected by American voters in the election of
1800 as incompatible with the First Amendment and with
American ideals.

The meaning of the First Amendment has been, and will
be, shaped by each American generation: by judges, political
leaders, citizens. There will always be authorities who try to
make their own lives more comfortable by suppressing critical
comment. There will always be school principals like the one
in Wilton, Connecticut, who in 2007 canceled a student play
about the war in Iraq because it might disturb some families.
But I am convinced that the fundamental American commitment
to free speech, disturbing speech, is no longer in doubt.

More Comments:

Dan Stewart -
4/1/2008

It never ceases to amazes me how the GOP has convinced its rank-and-file proles to rage against "activist judges" and enthusiastically waive their right to judicial redress in everything from tort claims to bankruptcy to minimum-mandatory sentencing.

Stumblng Tumblr -
3/31/2008

The opening paragraph is nonsense. Canada had judicial review of legislation from its inception in 1867; Australia, from its inception in 1901.